When Is A Facebook Post A Crime?

In the fall of 2010, [Anthony] Elonis’s Facebook posts included several that discussed harming his ex-wife. One post was a take-off on a comedy routine available on YouTube: Elonis asked his Facebook friends whether they knew that it was illegal for him to say that he wanted to kill his ex-wife, and he added that it would be “incredibly illegal” to suggest that someone could kill his ex-wife by firing a mortar launcher from the cornfield behind her house. A day later, Elonis put up a post about shooting a kindergarten class.

These posts earned Elonis a visit from an FBI agent. After the visit, he posted about that encounter too, suggesting in rap lyrics that he had strapped a bomb to his body and would have detonated it if he had been arrested. This post was apparently the last straw for the FBI: a few weeks later, Elonis was arrested and charged with violating 18 U.S.C. § 875(c), which makes it a crime to communicate threats in interstate commerce – for example, over the Internet.

“I’m just an aspiring rapper,” Elonis declared several times on Facebook, likening his bloody odes to the work of bestselling rapper Eminem, whose hit song “97 Bonnie and Clyde” also featured the murder of an estranged wife.

In fact, in his main brief to the Supreme Court, Elonis and his lawyers characterize his Facebook writings as part of a long, colorful tradition in American music, one where artists as different as Bob Dylan, Guns N’ Roses, Lightnin’ Hopkins, and Body Count all detail “first-person revenge fantasies” via song. “However hateful or offensive,” the Elonis brief argues, “those songs are entitled to full First Amendment protection. The same protections extend to the efforts of amateurs writing on comparable themes, moved by similar experiences.”

The federal government, however, is not buying it. Elonis’ assertion “that his own speech was indistinguishable from the speech of the various commercial artists he claims to have imitated wholly disregards the very different contexts in which his own statements were made,” the government argues in its reply brief. For one thing, the government points out, after Elonis’ wife sought and received a restraining order against him in response to one set of graphic Facebook posts, he promptly returned to the social networking site to ask whether her restraining order is “thick enough to stop a bullet?”

More of what Elonis wrote can be read here. How Garrett Epps understands the case:

The Facebook posts have attracted a lot of attention—many commentators see this as a case about rap lyrics and Internet speech—but really, it’s only relevant as part of a general question about context. If Elonis had sent the threats to the targets by mail, there would be little doubt of his intent. If he had written them in a diary that was discovered by accident, there’d be little doubt that they were protected. Where do Facebook postings fall?

Lyle Denniston thinks SCOTUS has two choices – “to look at the issue of intent from a subjective perspective, focusing on the speaker, or to look at it from an objective view, focusing on both the speaker and on a hypothetical ‘reasonable person’ exposed to the message”:

Anthony Elonis and his supporters argue that his postings on Facebook were not “true threats” because he actually had no “subjective intent to threaten another person.” If that is the test, a jury would have to make its own assessment of what an Internet user like Elonis did have in mind, examining the specific words used and their context.

The federal government and its supporters, however, argue that Elonis’s statements were judged — and should have been judged — by two measures: first, did he make his statements intentionally (without regard to what he was thinking), and, second, would “a reasonable person” read the words used and their context as conveying to the target of the message that they would be injured or killed?

If the legal test is subjective, social media posters can freely discuss violence towards others and then claim (possibly retrospectively) they didn’t intend to make a threat. Thus, we’d anticipate many defendants will say they are just emulating rappers like Eminem, no matter how vicious or threatening their posts sound. In light of the obvious problems that would create for criminal enforcement, I would be surprised if the Supreme Court adopted the subjective test.

Still, the objective test has its own problems. First, to determine if a social media post communicated a threat to a reasonable person, we have to understand the post. The post may contain internal signals–an emoticon, an LOL, a Rickroll–that tell readers about the author’s true intent…but only if the readers recognize those signals, and sometimes signals are sufficiently obscure. Second, we have to contextualize the post by reviewing posts before or after the one in question. Even if a post in isolation might sound threatening, the surrounding posts may cause the post in question to take on a new meaning. Third, we have to know more about the likely readers of the post. People in niche communities develop their own norms and language that outsiders may not understand. For example, if all of the readers are quite familiar with Eminem, they may understand a threatening-sounding lyric quotation in a way that anyone unfamiliar with those lyrics would miss.

Geoffrey R. Stone wants SCOTUS to “hold that Elonis is entitled to a new trial at which, in order to convict him, the jury must find, not just that a reasonable person would be frightened by his words, but that he intended his words to instill fear”:

Any other decision would run the risk of vastly expanding the concept of “threat” to the point where frightening speech more generally might be thought to be outside the protection of the First Amendment. That would be a disaster.

Of course, this does not mean that Elonis will be acquitted. On a re-trial, the jury might well find, not only that a reasonable person would interpret his words as a threat, but that he in fact intended them as a threat, despite his protestations to the contrary. But without that finding, Elonis’s conviction should be held to violate the First Amendment.

If the court rules for Elonis, those who are harassed and threatened online every day – women, people of color, rape victims and young bullied teens – will have even less protection than they do now. Which is to say: not damn much.

Several experts agree that such a decision could stifle freedom of speech online and offline, particularly among artists. If the court rules against Elonis, artists could be more hesitant to share anything that could be perceived as threatening — a slippery slope. On the other hand, such a ruling could increase the number of online harassment cases aggressively pursued by law enforcement. And there could also be a censorship effect on social media companies like Facebook.

“You have the potential for creating a chilling effect both on the part of speakers, but possibly even more on the part of entities that host potentially threatening speech,” said Paul Levy, an attorney at the Public Citizen Litigation Group. “If intent [to threat] isn’t needed [to prosecute], then it seems that the Facebooks of the world have to worry that they, too, can be prosecuted. It could have a serious censoring effect.”